HKSAR v. Leader Civil Engineering Corporation Ltd

HCMA 226/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 226 OF 2010

(ON APPEAL FROM STS3719-3720 OF 2009)

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 29 October 2010

Date of Judgment: 29 October 2010

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J U D G M E N T

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1.The Appellant’s company was convicted after trial of two summonses relating to breaches under the Factories and Industrial Undertakings Ordinance, Cap. 59, basically when the injured employee was taking down a concrete wall he was injured, and that caused the issuance of the summons.

2.Now obviously at the trial most of the facts were admitted.  The prosecution called the injured worker and then the expert witness who, was an important witness in the circumstances, because at issue was whether the employer i.e. the Appellant had ensured that the working condition was safe in relation to this injured employee.  The defence at the trial challenged the expertise of this expert witness, but to no avail.  The learned Magistrate accepted him as an expert witness.

3.It is obvious from the transcript that this expert witness Mr Chan was minutely cross-examined about his conclusions.  Subsequently, the learned Magistrate accepted the prosecution’s evidence, particularly the evidence of the expert witness, and at the end she convicted the Apellant company of both summonses.

4.On appeal, Mr Morley submitted on behalf of the Appellant several grounds of appeal.  The main ground of appeal which causes this court great concern is the expert witness’s statement.  It appears from the transcript of the trial, which Mr Morley pointed out, that the defence had no knowledge whatsoever that the learned Magistrate, prior to the calling of the expert witness had already seen the statement of the expert Mr Chan, and it appears from the transcript, at page 166 of the Appeal Bundle, that when Mr Chan was being examined and asked about his qualifications, the court then mentioned whether his qualifications were as stated in sections 1 and 2 of his statement.  It was then that Mr Morley stood up and said he did not realise that the learned Magistrate had a copy of this statement.  And the learned Magistrate then said she had asked for it (see page 167B).

5.Nowhere in the transcript does it show when it was, that the learned Magistrate had asked for the statement, so she must have asked for it outside the court sitting.  If that was the case then this was indeed a material irregularity, and it is specifically so in this case when the main issue of contention was whether the Appellant had ensured that the working condition was save and had done all he could.  The opinion of the prosecution’s expert witness was of crucial importance in this case.

6.It is wrong for the learned Magistrate to have sought the statement outside court without the knowledge of the defence.  If she had indeed asked for the statement during the trial, I would have no doubt that Mr Morley would have objected, because the defence stance was that they were challenging the expertise of this witness. 

7.This action of the learned Magistrate has caused this court grave concern and certainly this court hopes that this will not be repeated ever again.  It is highly improper and highly irregular, and so on just this ground alone, the conviction is unsafe and unsatisfactory, and the appeal is allowed and the convictions are set aside and the fine is to be repaid to the Appellant.

8.Costs of the appeal and trial to the Appellant to be taxed if not agreed.

Mr Jones Tsui, SPP(Ag), of Department of Justice, for the Respondent

Mr C Morley of Messrs Haldanes, for the Appellant